ALBANY — Gov. Andrew M. Cuomo on Thursday joined a growing call by Democrats to enact a state law that would allow anyone pardoned of crimes by a president to still be subject to prosecution under state law.
But legal experts said that power in state law already applies to the cases of President Donald Trump’s former lawyer Michael Cohen and Trump’s former campaign manager, Paul Manafort.
Democrats have accused Trump of abusing his pardon power to influence subjects in investigations of his administration.
Cuomo joined the clamor for the proposal after Cohen pleaded guilty in federal court to campaign finance law violations stemming from the 2016 presidential campaign. Cohen in court said Trump had directed him to make hush money payments to two women with the express purpose of "influencing the election.”
Manafort was found guilty Tuesday of federal tax and bank fraud charges.
“If Michael Cohen implicates the president in a crime and the president steps in and pardons Cohen from the crime to stop Cohen from implicating the president, that would be the most obnoxious constitutional situation,” Cuomo said Thursday. “It would be a total aberration of justice. I believe it would be an immediately impeachable offense because it really is an obstruction of justice.”
A Democratic bill in the Senate and Assembly to make all people pardoned by a president subject to state prosecution was introduced in April, but they haven’t moved out of their initial committees since then. The Senate bill doesn’t have a sponsor in the chamber’s Republican majority, which would be required to advance it. The Republican majority didn’t immediately respond to a request for comment Thursday.
A case brought under state law would have to contend with prohibitions under the U.S. Constitution and state constitution against “double jeopardy” — being tried for the same crime twice. However, if a person is pardoned for a federal crime, state prosecutors may argue that they weren’t convicted of any identical state crime, so they would still be subject to enforcement of state law, supporters of the measure have argued.
“Closing the double jeopardy loophole would allow our state to preserve its right to go after violations of New York law regardless of whether a federal pardon is issued,” said Sen. Todd Kaminsky (D-Long Beach), a former federal prosecutor. “It is common sense and basic fairness.”
State Attorney General Barbara Underwood, who in investigating Trump’s New York-based foundation, called the bill a top priority in May.
“President Trump has repeatedly abused his pardon powers to undermine the rule of law and, especially in light of recent events, it’s more urgent than ever that the state Legislature act,” said Underwood spokeswoman Amy Spitalnick on Thursday.
However, two legal experts — Albany Law School professor Vincent Bonventre and Jed Shugerman, a professor of law at Fordham University’s School of Law — say that proposal would only be needed in some cases to allow state prosecution. For example, Cohen and Manafort are accused of several violations of state law not matched in the federal charges and no pardon can stop those prosecutions, the legal experts said.
Cuomo’s Democratic primary foe, Cynthia Nixon, said Cuomo’s support of the measure is a political ploy.
“This is just the latest in Cuomo's Johnny-come-lately Trump approach,” said Nixon spokeswoman Lauren Hitt. “When AG Underwood proposed the bill in April and pushed for it throughout session, the governor said only that he would take a look and failed to make it a priority.”